Citation Nr: 1414217
Decision Date: 04/02/14 Archive Date: 04/11/14
DOCKET NO. 10-23 153 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to a disability rating in excess of 10 percent for service-connected chronic patellar tendonitis, right knee (right knee disability).
2. Entitlement to service connection for joint pain, to include fibromyalgia, back pain, and right hip pain (joint pain).
3. Entitlement to service connection for a right hand condition.
4. Entitlement to service connection for a chronic sinus condition.
5. Entitlement to service connection for headaches, to include as secondary to non-service connected chronic sinus condition.
6. Entitlement to service connection for left knee effusion and abnormal patellar mechanics (left knee disability), to include as secondary to service-connected right knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Eli White, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1990 to August 1994.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2009 and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2012, jurisdiction was transferred to the Atlanta, Georgia RO.
In December 2013, the Veteran testified at a video conference hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file.
In an August 2011 rating decision, the RO denied the Veteran's claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU), as well as claims of entitlement to service connection for a chronic sinus condition, right hand condition, and left knee disability. The Veteran subsequently filed a Notice of Disagreement (NOD) with the rating decision, stating that his disagreement pertained only to his service connection claims. The NOD contained no indication that the Veteran disagreed with the denial of his TDIU claim. Thus, the issue of TDIU is not currently on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. Id. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013).
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, to establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board recognizes that lay evidence concerning onset and a history of symptoms during or after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
The Board finds that remand is necessary in order to obtain outstanding private treatment records relevant to the Veteran's claims. At his December 2013 Board hearing, the Veteran testified that he received private treatment in San Antonio, Texas, for headaches, chronic sinus infection, and his service-connected right knee disability. With respect to his joint pain, the Veteran stated that he received treatment at St. Joseph's clinic in Garden City, Georgia, and additionally reported receiving continuous treatment on his back since service, to include implantation of a dorsal column stimulator in his back to help with his pain. The Veteran also testified that he has been diagnosed with fibromyalgia, and identified two private doctors who provided him with treatment for that condition. In addition, the Veteran reported having undergone surgery on his left knee at Memorial Hospital in Savannah, Georgia in 1996, and a September 2010 VA examination report reflects that the Veteran stated he had surgery to remove cartilage in his left knee in 1995 in Savannah, Georgia. A review of the evidence of record reveals that no such medical records have been associated with the claims file.
The Board recognizes that the RO made reasonable efforts to obtain relevant records and evidence pertinent to the Veteran's claims, including sending the Veteran a specific and detailed request in October 2011 that he complete and return VA Forms 21-4142, Authorization and Consent to Release Information. Review of the claims file indicates that the Veteran did not respond to this redquest. However, as the Veteran has now identified additional private treatment providers and outstanding medical records that may contain information pertinent to his claims, those records are relevant and another effort should be made to obtain all outstanding records prior to adjudication. 38 C.F.R. § 3.159(c)(2). The Veteran is reminded that he also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence).
Increased Rating - Right Knee
The Veteran contends that he is entitled to a disability evaluation in excess of 10 percent for his service-connected right knee disability. The Board finds that a new VA examination is necessary before appellate review may proceed.
As noted above, the duty to assist includes providing a thorough and contemporaneous medical examination. Green, 1 Vet. App. at 124. Although a new VA examination is not warranted based merely upon the passage of time, see Palczewski v. Nicholson, 21 Vet. App. 174 (2007), the Court of Appeals for Veterans Claims (Court) has held that "[w]here a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination." Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the disability has increased in severity).
At the December 2013 Board hearing, the Veteran asserted that his knee has progressively worsened since his last VA examination. Specifically, he reported that he has experienced increased pain, instability, and weakness. Accordingly, as the Veteran's last VA examination for his right knee was nearly 3 years ago, and as he asserts that the current medical evidence of record does not properly reflect his present disability level, remand is necessary so that the Veteran may be scheduled for a new examination to determine the current severity of his right knee disability.
Service Connection - Left Knee
The Veteran asserts that his current left knee disability was incurred as a result of overcompensation due to walking with a limp from his service-connected right knee disability. The Board finds that the September 2010 and March 2011 examinations and the June 2011 addendum opinion are inadequate and a new examination is warranted.
The September 2010 VA examination report noted that the Veteran's left knee condition began in 1993 as a result of compensating for his limping due to his service-connected right knee condition. The Veteran reported that he had surgery to remove cartilage in his left knee in 1995, and described current residuals of grinding, difficulty standing, weakness, and pain. Upon physical examination and x-ray, the Veteran was diagnosed with left knee effusion and abnormal patellar mechanics. The examiner stated he was unable to render an opinion as to whether it is at least as likely as not that the Veteran's left knee condition was caused by his service-connected right knee disability, as the claims file was unavailable for review.
The Veteran was given another VA examination in March 2011. The examination report noted the condition began in 1990 as a result of walking with a limp from the service-connected right knee. Upon physical examination and review of the claims file, the examiner stated that the Veteran's left knee condition occurred in 1990 as a result of trying to keep balance on deck, and opined that the "left knee condition is not caused by the service connected right knee since they both started at the same time and by doing the same things aboard the ship. It is more likely than not that the knee conditions are related to his military service as they both happened while he was in the Navy."
In June 2011, after review of the Veteran's service treatment records, the September 2010 examiner provided the following addendum opinion:
I opined there is no casual [sic] relation of right knee condition causing left knee condition. My initial evaluation of 9-10-10 revealed [patellofemoral pain syndrome]. This condition is less likely due to service connected right knee condition. Therefore the 03-17-11 medical evaluation concerning both knee conditions occurred at the same time is not verifiable as the review of treatment records failed to disclose any reference to left knee problem.
The Board finds that the June 2011 addendum opinion to the September 2010 examination inadequate, as it fails to address the Veteran's contentions and offers no supporting rationale for the conclusion reached. In order to be adequate, an expert opinion must be supported by an analysis that the Board can weigh against other evidence. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). "[M]ost of the probative value of a medical opinion comes from its reasoning," and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the June 2011 addendum opinion does not provide adequate reasoning as to whether the Veteran's left knee condition is related to his service-connected right knee. While the September 2010 report contained no opinion on the issue, the June 2011 opinion, which stated that the Veteran's patellofemoral pain syndrome of the left knee is less likely due to his service-connected right knee condition, merely consists of a conclusive statement without any supporting rationale or discussion indicating that he considered the reported onset of a left knee condition subsequent to the Veteran's limping from his right knee disability. The addendum opinion additionally failed to acknowledge the September 2010 diagnosis of effusion and abnormal patellar mechanics or discuss any causal relation due to the Veteran's right knee disability. Therefore, the Board finds that the June 2011 addendum opinion lacks probative value. See Nieves-Rodriguez 22 Vet. App. at 304.
The Board additionally finds that the March 2011 VA examination is inadequate, as it incorrectly stated that the Veteran's left knee condition had onset in 1990 while the Veteran tried to maintain balance on the deck of his ship. The Veteran has consistently stated, and indeed the March 2011 VA examiner noted elsewhere in his report, that his left knee disability had onset subsequent to his right knee disability and associated limping, as a result of compensating for that injury. At no point has the Veteran asserted that his left knee disability was incurred as a result of trying to keep balance on deck of his ship. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, on remand, the Veteran must be afforded an adequate examination and opinion with respect to his left knee condition.
Service Connection - Chronic Sinus Condition and Headaches
The Board finds that a new VA examination is additionally necessary to determine the nature and etiology of any current sinus condition. Review of the record shows that the Veteran was treated in service for sinusitis, and underwent surgery to correct right pansinusitis in March 2000. The Veteran was given a VA examination for a chronic sinus condition in September 2010. At the examination, the Veteran reported that he has had this condition since 1992, and that his current sinus problems occur once per year, with each episode lasting for 28 weeks. The Veteran reported up to 3 incapacitating episodes per year, lasting for 3 days each. He further stated that he experiences headaches and pain during attacks. The Veteran noted that he underwent surgery to open his sinus and drainage and that his response to the procedure and medication had been good, with temporary relief but reoccurrence of blockage. Upon physical examination and x-ray, the examiner stated "examination shows sinusitis present at maxillary and frontal with tenderness," with no nasal obstruction, deviated septum, or purulent discharge from the nose. He further stated "a diagnosis is not possible because normal nasal examination and normal x-ray. There is no finding of bacterial rhinitis." In response to a clarifying question from the RO regarding the notation of sinusitis present at maxillary and frontal with tenderness, the examiner specified that "subjective reporting of pain and tenderness is not always due to sinusitis. The negative x-ray ruled out active sinusitis."
The Board is mindful that certain disorders by their very nature tend to have active versus inactive stages. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). While the September 2010 examiner specifically noted that the Veteran did not have active sinusitis upon examination, the Board finds that in light of the Veteran's March 2000 surgery for pansinusitis, and his credible and competent statements regarding the current nature, frequency, and severity of his symptoms, including his report that his sinus condition occurs only 28 weeks of the year, it is essential to attempt to schedule him for an examination of his sinus condition during an active stage. See id.
The Board additionally finds that a VA examination is needed to determine the nature and etiology of the Veteran's headaches. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient and competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the Veteran suffered an event, injury, or disease in service, and indicates that the current disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2013); see McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Veteran testified at his December 2013 Board hearing that he currently suffers from headaches, and experiences them at least weekly. He specifically noted that he has headaches related to chronic sinus infections, for which he takes medication, and that he also experiences headaches separate from his sinus condition. The Board notes that the Veteran is competent to describe his continuous symptoms of headaches from service to the present. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no reason to doubt the Veteran's credibility.
The evidence of record demonstrates that the Veteran was treated for headaches in service. Specifically, an October 1990 service treatment record reflects that the Veteran complained of a headache lasting two days and nasal congestion with yellowish mucous. In October 1992, he suffered a headache after being involved in an altercation. In July 1994, the Veteran was treated for frontal headache, with mild photophobia, while another July 1994 treatment record shows that the Veteran complained of headaches and was prescribed rest and medication.
Here, as the evidence of record tends to show that the Veteran's current headaches may have had onset in or be related to service, on remand, the Veteran must be provided with a VA examination to determine the nature and etiology of this disability.
Service Connection - Right Hand
The Board finds that a new VA examination is additionally needed with respect to the Veteran's right hand. Upon soliciting a history and examination of the Veteran including x-ray, the September 2010 VA examiner rendered no diagnosis, stating that "there is negative x-ray and negative examination of the wrist and hand save for slight decrease of motion of the finger joints, bilateral." In a September 2010 addendum, the examiner elaborated that the "decrease of motion o[f] all the fingers on both hands alone without any radiographic findings is not enough to pinpoint a specific diagnosis. Further diagnostic study merits consideration."
Though the examiner stated he could not render a specific diagnosis, notably, he relayed findings of a decrease in motion of the finger joints and recommended further diagnostic study. Accordingly, the Board finds that the September 2010 VA examination is inadequate for proper adjudication of the claim as it specifically states further medical study is needed and additionally failed to provide an opinion with respect to any causal relationship between the Veteran's decreased range of motion and his active service. Thus, on remand, a new examination is warranted.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and request that he specifically identify any private medical providers who have treated him for his knees, back, hips, fibromyalgia, joint pain, chronic sinus condition, headaches, and right hand and provide completed release forms (VA Form 21-4142) authorizing VA to request copies of any treatment records from such medical providers, to specifically include Memorial Hospital in Savannah, Georgia, Candler Hospital, Georgia, and additional private treatment providers identified during the Veteran's December 2013 Board Hearing testimony, including:
(a) Private treatment received in San Antonio, Texas
(b) Private treatment of his spine from Dr. V;
(c) Private treatment of his hip and back from Dr. F;
(d) Private treatment for fibromyalgia from Dr. M.D. and rheumatologist Dr. C.C.; and
(e) Private treatment and surgery for chronic sinus condition.
After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.
2. After completing the above development, schedule the Veteran for a VA examination to determine the current severity of his service-connected right knee disability. The claims file, including a copy of this Remand, must be provided to the examiner for review. After conducting any appropriate and required testing, the examiner must describe in detail the current signs, symptoms, and manifestations of the service-connected right knee disability. The examiner must explain the rationale for any opinion rendered.
3. After obtaining and associating any identified and relevant treatment records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his left knee disability. The claims file, including a copy of this Remand, must be provided to the examiner for review. All necessary special studies or tests should be accomplished. The examiner is additionally asked to accomplish the following:
(a) Interview the Veteran as to the relevant history of his current left knee disability and include a detailed description of that history in his or her report.
(b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's left knee disability is related to the Veteran's active service, to include as secondary to his service-connected right knee disability.
(c) Provide an opinion as to whether it is at least as likely as not that the Veteran's left knee disability was aggravated beyond its natural progression by his service-connected right knee disability.
If the examiner finds that the left knee disability was aggravated, but not caused, by the right knee disability, he or she should, to the extent possible, indicate the baseline level of severity of the left knee disability and the extent of the aggravation.
The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
4. After obtaining and associating any identified and relevant treatment records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of any right hand disability, to include the fingers and wrist. The claims file, including a copy of this Remand, must be provided to the examiner for review. While review of the entire claims file is required, particular attention is invited to the following records:
(a) An August 1991 service treatment record noting treatment of pain and swelling in the right hand subsequent to falling down three days prior and rendering a diagnosis of soft tissue injury;
(b) A December 1993 service treatment record noting complaint of pain to the right hand for two weeks post trauma and referring the Veteran to the base medical clinic for further evaluation; and
(c) The September 2010 VA examination noting decreased range of motion in the fingers, bilaterally.
All necessary special studies or tests should be accomplished. The examiner is additionally asked to accomplish the following:
(a) Interview the Veteran as to the relevant history of his current right hand condition and include a detailed description of that history in his or her report.
(b) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that any identified right hand disability or decreased range of motion had onset during or was caused by the Veteran's active service.
The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
5. After obtaining and associating any identified and relevant treatment records with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of any identified sinus condition and headache disability. The claims file, including a copy of this Remand, must be provided to the examiner for review. While review of the entire claims file is required, particular attention is invited to the following records:
(a) Service treatment records dated October 1990, October 1992, and July 1994 noting complaint of headache;
(b) Service dental health questionnaires dated September 1990 and January 1994 in which the Veteran answered "yes" to having ever had or currently having sinus problems;
(c) A May 1993 service treatment record noting sinus congestion and headache and rendering diagnoses of sinusitis and bronchitis;
(d) An August 1993 service treatment record noting pain and bruising to the right forehead and a diagnosis of frontal hematoma;
(e) A March 2000 private treatment record documenting the Veteran underwent endoscopic right anterior ethmoidectomy and middle meatal antrostomy, with pre and postoperative diagnoses of right pansinusitis, and noting severe right frontal and orbital headaches; and
(f) The September 2010 VA examination report for chronic sinus condition.
All necessary special studies or tests should be accomplished. The examiner is additionally asked to accomplish the following:
(a) Interview the Veteran as to the relevant history of his sinus condition and headaches and include a detailed description of that history in his or her report.
(b) Provide an opinion as to whether the Veteran has a current chronic sinus condition. In making this determination, consider whether a sinus condition, if chronic in nature, may tend to have active versus inactive stages.
(c) Provide an opinion as to whether the Veteran has a current headache condition.
(d) With respect to any diagnosed sinus or headache condition, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that the conditions had onset during or were caused by the Veteran's active service.
(e) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater possibility) that any headache condition is related to the Veteran's chronic sinus condition.
The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
6. After ensuring that the requested actions are completed, readjudicate the claims on appeal. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).